1. This is a suit for partition of property which was admittedly at one time a jagir of one Dhurup Singh, the common ancestor of the plaintiff and the defendants. It apparently descended to his eldest son, Bhukan Singh, but in Bhukan Singh's time was resumed, and after that was again granted in the name of Pahalwan Singh, the third son of Dhurup Singh, and not in the name of Baiju Singh the second son, who was the plaintiff's ancestor. It is a matter of controversy in this case whether the jagir was given exclusively to Pahalwan Singh or given to him as the representative of the whole family.
2. Only one name is recorded as jagirdar in the Collector's Register. After Pahalwan Singh, Jhao Singh was recorded, after him, Odit Singh, after him, Ghinu Singh and after Ghinu, the present defendant No. 3, Nursing Dyal Singh. In the time of Ghinu Singh, a suit was brought by the present plaintiff for declaration of his rights, which seems to have been almost identical in nature with the present suit except that partition was not sought. The plaintiff succeeded and obtained a decree which was affirmed on appeal by this Court.
3. In the present case, the learned Subordinate Judge has found that this decision was wrong, that the jagir belonged to Nursing Dyal Singh alone and that the plaintiff was not in possession and not entitled to succeed. The plaintiff appeals to this Court.
4. It appears to us that the decision of the learned Subordinate Judge cannot be sustained. In our opinion, the matter is now a res judicata.
5. The issues in the former suit, as we gather from the decision of this Court, were as follows : Firstly, is the plaintiff in possession of the property in suit? If not, can the suit proceed P Secondly, does the rule of primogeniture prevail in the family of the parties? Thirdly, was the property in suit granted in jagir to Pahalwan as alleged by the defendants? On the first point, the learned Judges observed that it was contended on behalf of the defendants that the Court below was wrong in holding that the possession of the plaintiff was made out so as to entitle him to maintain his suit for a declaratory decree. But they agreed with the Court below in the conclusion arrived at, namely, that the possession of the plaintiff was made out. On. the second point, they held that it lay upon the defendants to prove that there was any special custom governing the succession to this jagir as against the ordinary Hindu Law of succession and that the defendants had failed to discharge that burden, or, in other words, that the rule of primogeniture was not proved to prevail in the family of the parties. On the thud point, they held that the plaintiff's ancestor along with other, members of the family had been in possession of the lands of the jagir by virtue of their right by inheritance and that the grant of the jagir was not to Pahalwan Singh alone.
6. These findings seem to us completely to dispose of the present suit in which these identical questions are raised. It is no body's case that the plaintiff has been dispossessed since the decision of the former suit. The only reason given for holding that the suit is not concluded by the rule of res judicata is that if, as is alleged by the plaintiff, the family is governed by the ordinary Mitakshara law, it must be held that the defendants obtained an interest in the property at birth and did not derive their rights from Ghinu. It would follow, therefore, that as they were not parties to the former suit though they were alive at the time, they are not bound by the decision.
7. With this question, we are only concerned in so far as it affects the defendant No. 3. The contesting defendants are defendants Nos. 1 to 10. Of these, defendants Nos. 1, 2, 9 and 10 were parties to the former suit while defendants Nos. 4 to 8 disclaim all title to the property. As regards defendant No. 3. we find, on reference to his written statement, that be states distinctly that the property is impartible and governed by the rule of primogeniture. In that case, it is perfectly clear from the decision in Sartaj Kuari v. Deoraj Kuari 10 A. 272 : 15 I.A. 51 that he obtained no right at birth at all and could not properly have been made a party to the former suit during his father's life-time. In these circumstances, it appears to us that he must be regarded as claiming under Ghinu.
8. It does not appear to us to be of any importance what the plaintiff's case is. A reference to Section 11, Civil Procedure Code, shows that what has to be considered in these cases is what the defendant himself claims, and, as we have said above, on the allegations in his written statement, he must be regarded as claiming under Ghinu.
9. Reference has been made to an alternative claim put forward by the defendants Nos. 4 to 8. If they had put forward the alternative case that even though the rule of primogeniture did not apply, yet the jagir was granted to Pahalwan Singh alone, something might have been said for it. But the only alternative prayer they put forward is that if the plaintiff succeeds in getting a decree for partition, that is to say, if it is found that others besides Pahalwan Singh's descendants are interested in the jagir, the share of these defendants also may be separated. To this prayer, the plaintiff has no objection.
10. We have been invited to go into the merits of the case, but we think that it is not proper for us to consider the correctness of a former decision of this Court based on the same materials with regard to the same matters in controversy and between persons whom we regard as the same parties.
11. It appears to as, therefore, that the appeal must be allowed with costs and a preliminary decree given to the plaintiff for partition.